The Conflict and the Balance between the Right to Development and the Right to the Environment

June 27,2017 By:CSHRS

The Conflict and the Balance between the Right to Development and the Right to the Environment—Perspective and Reflection Based on China
LI Hongbo*

Abstract:The right to development and the right to the environment are both third generation rights, closely related to human development and world peace. For developing countries, there is a de facto conflict between the right to development and the right to the environment, which leads to serious consequences. To coordinate development and the environment, developing countries should shift their pattern of development, take the path of sustainable development and realize environmental protection and ecological balance while promoting economic growth.

Keywords: the right to development ♦ the right to the environment ♦Declaration on the Right to Development

I. Introduction

Throughout human history, the relationship between development and the environment has never been as intense as it is now: on one hand, due to the existence of large-scale poverty worldwide, developing countries should promote social progress and improve the conditions for human existence through economic growth; on the other hand, tremendous environmental problems such as resource shortages, species extinction, air pollution, soil pollution and water pollution resulting from industrial production directly threaten the survival and sustainable development of mankind.

From the perspective of human rights law, the above predicament may be summarized as the internal tension and conflict between the right to development and the right to the environment, and this issue is especially obvious and prominent in developing countries such as China. On the occasion of the 30th anniversary of the United Nations’ Declaration on the Right to Development, it is necessary to review the relationship between these two human rights and seek a way to reconcile and balance them.

II. The Proposal of the Right to Development and the Right to the Environment

In the history of human rights development, the right to development and the right to the environment both belong to the so-called “the third generation rights” that first appeared in the 1970s.1

On the level of domestic law, the right to subsistence, as an explicit legal norm, was first found in the Weimar Constitution of Germany in 1919, in which Article 151 of Section V (Economic Life) of Chapter II stipulates, “[t]he organization of economic life must conform to the principles of justice to the end that all may be guaranteed a decent standard of living.” Since the Second World War, the concept of the right to subsistence has been widely accepted by all countries. On the level of international law, in 1969, the report of the Algeria Commission for Justice and Peace, The Right to Development of Underdeveloped Countries, put forward the concept of “the right to development” for the first time. In 1977, the United Nations Commission on Human Rights adopted a resolution to include the right to development as a basic human right; in 1979, the Commission on Human Rights reiterated that the right to development is both a state right and an individual right, and the opportunity for development should be equal for all. In the same year, the United Nations General Assembly adopted Resolution 34/46 reflecting this view. In 1986, the 41st United Nations General Assembly adopted the Declaration on the Right to Development which sets out a systematic exposition on the right to development and calls for promoting the development of developing countries and promoting the establishment of a new international order. The Declaration on the Right to Development points out, “[t]he right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realized.”

The right to development is a fundamental human right, as other human rights would be unattainable without the comprehensive development of states, society and individuals. “In light of its internal characteristics, the right to development is a qualification or capability of humans as individuals, and states and nations as collectives of humans, to freely participate and enhance the comprehensive development of the economy, society, culture and politics and enjoy the benefits of development, and is an essential requirement of all mankind for comprehensive development; in light of its external characteristics, the right to development is a basic human right widely existing in domestic and international communities for the purpose of meeting basic human demands. Therefore, in an abstract sense, the right to development may be defined as a basic human right with which individual and collective participation of humans promotes and enjoys coordinated, balanced and sustainable development of each other within different temporal and spatial limits.”2

The proposal of the right to development reflects mankind’s requirement for a fairer new international order. Differing from the first generation and the second generation human rights, the discourse of the right to development is dominated by developing countries, of which the main content is that developing countries should realize comprehensive, balanced, sustainable and green development. Therefore, “the right to development is a product of undeveloped and marginalized subjects of rights striving for discourse power.”3 In reality, it is very difficult to realize the right to development. On one hand, the relatively established international economic order and pattern, to some extent, limits the opportunities for backward countries to acquire opportunities for robust development; on the other hand, changes in the natural environment since industrialization have made development more difficult than it was before the 19th century. In other words, the right to the environment constitutes another counterweight and constraint in regards to the right to development.

Like the right to development, the right to the environment is also a new type of human right. “In light of its internal characteristics, the right to the environment is a qualification or capability of humans as individuals and states and nations as collectives of humans to freely enjoy and protect the resources and environment of the earth and promote the harmony between man and nature as well as the sustainable development of society, and is an internal demand of all mankind to live a healthy and fruitful life.”4

In practice, in 1960, a doctor in West Germany appealed to the European Commission on Human Rights that “the dumping of waste in the North Sea” was an infringement of human rights, thus triggering a dispute over whether the right to the environment should be added into the list of human rights in Europe. 5Since the connection of human rights to environmental problems in the 1972 Stockholm Conference on Environment and Development, more and more people have generally deemed the right to the environment as a human right. Later, the right to the environment as a human right was confirmed by a series of international law documents. The African Charter on Human and Peoples’ Rights declares, “[a]ll peoples shall have the right to a general satisfactory environment favorable to their development.” The first principle in the Stockholm Declaration of the United Nations Conference on the Human Environment reads, “[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.” In addition, exposition of the right to the environment is found in other statements such as the Declaration on Social Progress and Development and the Nairobi Declaration. Article 11 of the International Covenant on Economic, Social, and Cultural Rights adopted in 1966 also declares, “[s]tates of the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”

There used to be theoretical criticism and questioning as to whether the right to the environment is an independent human right. However, with the deterioration of the environment, people have come to accept the right to the environment and have begun to recognize its status as an independent human right. “The right to the environment requires no harm to the environment as a basis standard, which is absent in other rights and also a constraint over other rights.6 As far as this point is concerned, the right to the environment can’t be covered by any other rights.” The right to the environment, like other human rights, is a rights system with rich contents consisting of multiple sub-rights, including citizens’ right to use, understand and participate in the environment as well as the right to request related departments for protection when the environment is being harmed.7

III. The Conflict between the Right to Development and the Right to the Environment

An individuals’ development requires consuming material resources, and such a requirement is even more prominent with the development of a nation, a state and mankind as a whole. In today’s world, among almost all basic human rights, the internal conflict between the right to development and the right to the environment is the most prominent and obvious. “The opposition between the environment and development is reflected as follows: rapid economic development will inevitably lead to environmental problems, and the strict protection of the environment constrains economic development in the short term.”8 Human beings pursue a rich, decent, and dignified life, and to realize this purpose, they will inevitably require more water, lumber, minerals, oil and natural gas from nature. If human demands are controlled within an appropriate extent and within a scope that nature can sustain, human development and natural harmony can co-exist. This harmony will inevitably face damage if the reasonable extent of consumption is surpassed.

Compared with earlier time periods, developing countries today are confronted with unprecedented conflict between the right to development and the right to the environment, as well as resulting crises. The conflict between the right to development and the right to the environment has become a severe practical problem that developing countries must face.

First, the conflict between the right to development and the right to the environment is a problem concerning man and nature. Though the subjects of rights are humans, and the right to development is for mankind, what lies behind the right to the environment is the protection of the environment and ecology. “The right to the environment, as a human institution, also plays its role by acting on humans or units formed by humans. The difference is that behind the relationship among humans, the relationship between humans and nature is implied. The right to the environment, after acting on humans, must affect the relationship between man and nature through these humans.”9 The relationship between man and nature has become increasingly intense since the Industrial Revolution, and the internal conflict between the right to development and the right to the environment has also begun to be more prominent. The development of the capitalist industrial system has rapidly increased the demands of capital for natural resources, while technological progress makes it possible to exploit natural resources on a large scale. Large machines can empty a mine overnight, while railways and large container ships can transport raw materials and goods to places all over the world. With economic and technological development, population increases sharply and consumerism constantly stimulates people’s desire for occupation and consumption. All these directly lead the exacerbation of environmental problems.

Second, the conflict between the right to development and the right to the environment is a problem for contemporary people as well as future generations. There is an issue of inter-generational justice for the enjoyment of both the right to development and the right to the environment, but there is also some difference in that the right to development is more pertinent to the present, while the right to the environment lays more stress on the future. In face of the global crisis in resources and the environment, Rawls proposed a new theory of justice as early as 1972. He holds that the next generation should enjoy at least the same resource and environmental basis as this generation, which marks the proposal of the inter-generational justice of resources and the environment. “The inter-generational justice of resources and the environment is the primary and most basic concept of inter-generational justice, and its basic meaning is: the human society develops in a state of generational continuation; the social members of the current generation, as a whole, jointly own the natural resources on earth and jointly enjoy an environment suitable for subsistence; in specific periods, the current generation is also the manager and custodian of the earth’s environment for future generations; this endows the current generation with an obligation to protect the earth and also grants the current generation the right to enjoy the resources and environment of the earth. In short, each generation equally enjoys the right to resources and the environment; the quality of the environment left from one generation to the next should not be worse than the quality of the environment inherited from the previous generation, and the resources available for development left by one generation to the next should not be fewer than those inherited from the previous generation; meanwhile, each generation should not sacrifice its opportunity for developing the economy and improving wellbeing in order to preserve resources and the environment for the next generation.” 10 The earth’s resources and the opportunity of subsistence belong to all mankind, not only those currently living but also future generations. If the current generation exhausts resources and pollutes the environment for its own development, the next generation will lose their development opportunity and pay the price for the development of the earlier generation, which is a serious infringement on the next generation’s right to development.

Third, the conflict between the right to development and the right to the environment is a global issue. On one hand, the tension between the environment and development is not caused by one country or one group, and all countries and all of mankind should bear the responsibility. After the Second World War, capitalist countries laid one-sided emphasis on economic development, neglected environmental protection and caused serious environmental pollution and resource shortages. When developing countries started to take the path of development, the global environmental problems they faced were very serious. There was not much room for carbon emission, their motive for rapidly developing the economy was lost and their ability to balance economic development and environmental protection was reduced. Even today, developed countries have not eliminated or reduced carbon emissions, but use the already established unfair international economic order to transfer carbon emission to developing countries. Developed countries invent patents, while production and manufacturing are taken on by developing countries. When Europeans and Americans consume a large number of cheap commodities from China and India, they are not justified to blame environmental deterioration and climate change exclusively on developing countries. Though there is conflict of interest between developed countries and developing countries in the environment and development, there is no triumph belonging to just one party. On the other hand, neither environmental pollution nor widespread poverty are separate matters for a particular sovereign state. There is no national border for environmental pollution or climate change, while widespread poverty will inevitably lead to turmoil and trigger refugee crises and terrorism. These problems are not faced by the individual state alone, but are common problems that the whole world must face.

In summary, economic growth per se is not an end, and development must be coordinated with the environment. The Declaration on the Right to Development clearly points out that development is a multi-dimensional comprehensive process and its purpose is “the active, free and meaningful participation of the entire population and of all individuals in development” and in “the fair distribution of the benefits resulting therefrom”, and the constant improvement of the well-being of the entire population and of all individuals.” The Declaration on the Human Environment also points out, “[i]n our time, man’s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment.” Development would almost become meaningless if the natural environment suffers from serious pollution and directly threatens human survival. Therefore, the present world and generation must face up to the tension and conflict between the right to development and the right to the environment and must resolve practical problems resulting from such conflict; otherwise, mankind will have no future.

IV. A Path to Sustainable Development: Balancing the Right to Development and the Right to the Environment

Currently facing a world with a polarization of wealth and a seriously polluted earth, and in the face of the unprecedented conflict between the right to development and the right to the environment, the Community of Common Destiny should break away from the old pattern of development, take a new path of sustainable development and realize the harmony of the right to development and the right to environment.

The idea of setting the right to development against the right to the environment is wrong, as we should neither seek development at the expense of the environment nor stop development to protect the environment. “The relationship between the right to the environment and the right to development is a unity of opposites. The opposition between the environment and development is reflected as follows: rapid economic development will inevitably lead to environmental problems, while strict protection of the environment constrains economic development within a short period of time. On the whole, however, the environment and development are unitary, which is reflected as: development leads to environmental problems, while the solution of environmental problems ultimately depends on development.”11 In fact, there is not only conflict and tension but also the necessity and possibility of coordination and accommodation in the relationship between the right to the environment and the right to development.

On one hand, from a technological perspective, the solution of environmental problems should depend on economic development and technological progress. There is a close relationship between poverty and environmental deterioration; therefore, without the security of a certain economic basis, environmental protection would be meaningless, just like a tree without roots. Meanwhile, environmental problems are complicated, scientific and technological, requiring science and technology to be a major problem-solving measure. Without scientific and technological progress and without comprehensive progress in machinery, equipment and instruments promoted by scientific and technological progress and development, it would be impossible to resolve environmental problems.

On the other hand, from a social perspective, the solution of environmental problems ultimately relies on the establishment of societal awareness of ecological civilization, and requires people’s transformation of their lifestyles, which should be based on development. Only through development can people enjoy a good life, receive a good education, acquire information about science and change their outlook and action patterns to meet the standards of modern civilization and ecology. The Vienna Declaration and Programme of Action points out, “[t]he existence of widespread extreme poverty inhibits the full and effective enjoyment of human rights; its immediate alleviation and eventual elimination must remain a high priority for the international community.” Global experience shows that if a state is poor, its government is not likely to attach importance to environmental protection and society is not likely to embrace ecological civilization.

To realize the harmony of the right to development and the right to the environment, and to realize the development and progress of human society while maintaining healthy ecology, the world should take the following actions:

First, the international community represented by the United Nations should adopt united actions and make responsible arrangements and far-sighted planning for major problems concerning human destiny. In 2015, the United Nations’ Summit on Sustainable Development was held at the UN Headquarters in New York, and adopted Transforming our World: the 2030 Agenda for Sustainable Development, which points out that we should “ensure that all human beings can fulfil their potential in dignity and equality and in a healthy environment”; “We are determined to protect the planet from degradation, including through sustainable consumption and production, sustainably managing its natural resources and taking urgent action on climate change, so that it can support the needs of present and future generations”; “We envisage a world in which every country enjoys sustained, inclusive and sustainable economic growth and decent work for all. A world in which consumption and production patterns and use of all natural resources—from air to land, from rivers, lakes and aquifers to oceans and seas—are sustainable.” To this end, international organizations represented by the United Nations, in the formulation of international laws and rules, must reasonably allocate the obligations and responsibilities of developed countries and developing countries, and realize the balance of development and the environment with fair and feasible international law and order. “In terms of the theory and practice of international law conducive to development, to ensure the fulfillment of the right to development, we must admit the fact of inequality of development between developing countries and developed countries and that developed countries must give care to establishing an asymmetrical relationship of rights and obligations between developed countries and developing countries, that is, a system in which developed countries grant special treatment to developing countries such as preferential and non-reciprocal treatment which does not require developing countries to fulfill equal obligations.”12

Second, developed countries must take on responsibilities in this process. As far as the environment is concerned, developed countries have even more compelling responsibilities. The environmental problem is a global problem, and so is the problem of development. No country can avoid these problems. “The right to development is an important measure for the human society to realize its own equal and harmonious development, while to truly realize the right to development is the end of social progress and historical development. The right to development entails the basic values of freedom, harmony and equality, and to improve and develop national sovereignty, and to promote the harmonious and balanced development of all countries in the world, especially developing countries, is the contemporary value target of the right to development.” 13Therefore, developed countries must play an active role in the realization of sustainable development goals. On one hand, developed countries should welcome the development of backward countries, instead of being on guard against such development. They should also provide necessary assistance to the development of developing countries and jointly participate in actions to eliminate poverty; on the other hand, developed countries should actively guide and promote environmental protection, and while assuming their own responsibility for reducing carbon emissions, they should also help developing countries with their advantages in technology, capital and management.

Third, developing countries must change their modes of development, realize green and economic development and take a path to sustainable development. In China, the Fifth Plenary Session of the Eighteenth CPC National Congress established five major ideas of development, including “innovation, coordination, green development, opening-up and sharing”. The so-called “green development” means to “promote the harmonious co-existence of man and nature, construct a scientific and reasonable pattern of urbanization, agricultural development, ecological safety and natural coastlines, and promote the establishment of an industrial system of green and low-carbon circular development”, “stick to the basic state policy of resource conservation and environmental protection, stick to sustainable development, firmly take the path of civilized development with production development, a well-off life and good ecology, accelerate the construction of a resource-saving and environmentally friendly society, develop a new pattern of modernization construction with harmonious development of man and nature, promote the construction of a beautiful China and make new contributions to global ecological safety; accelerate the construction of main function areas and use main function areas as the basis system for the protection of national land space development”. To realize “green development”, we should resolve problems in three aspects. First, we should establish a system and mechanism for green development. The communique of the fifth plenary session proposed that we should “promote the development of low-carbon circular development, establish a clean, low-carbon, safe and efficient modern energy system and implement the demonstration projects of near-zero carbon emission areas. We should comprehensively, safely and efficiently use resources, establish an outlook of saving, intensive and circular use of resources, establish and improve a system of initial allocation of the right to use energy, the right to use water, emission rights and carbon emission rights, and promote the development of a diligent and saving social custom.” Second, we should implement strict accountability and punishment for perpetrators of environmental pollution. The communique of the fifth plenary session proposes that we should “step up efforts in environmental governance, and centering on improving environmental quality, implement the strictest environmental protection system, further implement action plans for preventing and treating air, water and soil pollution, and implement the vertical management system of environmental protection institutions below the provincial level for supervision, monitoring and law enforcement.” Third, we should implement ecological protection. The communique of the fifth plenary session proposes that we should “solidly build shields for ecological safety, focus on the strategy of giving priority to conservation and natural rehabilitation, implement ecological protection and rehabilitation projects for mountains, waters, fields and lakes, conduct large-scale actions to afforest our land, improve the natural forest protection system and conduct environmental protection for our bays”. To implement the decision of the central government and realize green development, the National Human Rights Action Plan (2016-2020) points out that on one hand, we should “generally improve people’s living standards and quality of life; improve the public service system and upgrade the level of service equalization; make full efforts to implement poverty alleviation programs and realize poverty alleviation of the entire poverty-stricken population based on current standards”; on the other hand, we should “implement the strictest environmental protection system, develop an environmental governance system with joint governance by the government, enterprises and the public, focus on resolving prominent environmental problems such as air, water and soil problems, and realize the overall improvement of environmental quality.”14

V. Conclusion

As the largest developing country in the world, China’s position is that the right to subsistence and the right to development are primary human rights, and that without the right to subsistence and the right to development, all the other human rights would be out of the question. In the past 30-plus years, China has formed a path to development with its own characteristics. Through economic reform, productivity has been greatly increased, tremendous progress of the Chinese society has been promoted and the overall improvement of human rights conditions in China has been realized. However, serious environmental problems have resulted and ecological cost has been paid in some places over the course of development. Currently, on the basis of summarizing historical experience and lessons, China is conducting the adjustment and transformation of economic structure and development mode. The world should take an optimistic and welcome posture towards such efforts. After all, the realization of the “Dream of a Beautiful China” with green mountains and clear water will not only provide conditions for the great rejuvenation of the Chinese Nation but also bring benefits to the world.

1The theory of “third-generation human rights” is a human rights theory first proposed by Karel Vasak, a former legal adviser to UNESCO. Third-generation human rights are a response to global interdependence and a product of constant development of national liberation campaigns. Its central ideas include peace, the environment and development, etc.

2Wang Xigen, “Legal Philosophical Analysis of the Meaning of the Right to Development”, Modern Law Science 6(2004): 7.

3Wang Xigen and Tu Shaobin, “The Right to Development: a Post-Modern Legal Interpretation”, Law and Social Development6 (2005): 56.

4Hou Huaixia, “On the Right to Environment in Human Rights Laws”, The Journal of Suzhou University (Philosophy and Social Sciences)3 (2009): 36.

5Li Yanfang, “On the Right to Environment and Its Relationship with the Right to Subsistence and the Right to Development”, The Journal of the Renmin University of China 5 (2000): 96.

6Lü Zhongmei, “The Citizens’ Right to Environment: A Revisit”, Chinese Journal of Law 6 (2000): 133.

7Ibid., 135-139.

8Li Yanfang, “Right to Environment and Its Relationship”, 100.

9Xu Xiangmin, “On the Right to Environment: From the Perspective of Historical Periods of Human Rights Development”, China Social Sciences 4 (2004): 134.